Workers’ Compensation Board Chair Robert E. Beloten recently adopted significant new amendments to 12 NYCRR Section 300.2, which touches upon the policies and procedures of scheduling, completing, and reporting in connection with independent medical examinations (IMEs). Substantial changes have been made that will require detailed attention as to a variety of matters, including how and when information is to be exchanged between an insurance carrier and the IME vendor, who may perform the examination, and what contents must be included in the IME report.

Some of the most noteworthy changes include:

• Notice: “Notice of the scheduled IME may be made using overnight mail as long as the notice is received by the claimant at least seven days prior to the scheduled examination.”

• Provision of Information to the Board/Request for Information: In perhaps the most important change, the board now requires that every record, document, or test result supplied to the IME must be a part of the board file:

Any information that is not already part of the Board file must be submitted before or at the time the IME or records review is arranged. Information submitted to the Board before or at the time the IME is arranged should not be submitted to the Board as a Request for Information using an IME-3. 

An IME-3 should be submitted to the board when the provider receives “any substantive communication regarding the claimant,” but should not include items already part of the board file.

This regulation will require an even-more diligent investigation into any prior medical records and timely subpoena of any records not submitted into eCase by the physicians. Additionally, a copy of any medical reports received should be scanned into eCase as soon as possible to ensure full compliance with this section.

• Report Contents — Discussion of Prior Records, Questionnaires, and Certifications: The IME physician must now “list all documents, reports, and other items reviewed in the IME or records review report.” Recommended practice is for the IME provider to list the names of each physician whose reports he or she reviews, along with the dates of service for each report to ensure compliance.

Additionally, regardless of whether the report is from a full IME or “peer review” or “records review” report, “[e]ach such report shall contain a signed statement certifying that the report is a full and truthful representation of the examiner’s professional opinion with respect to the claimant’s condition in accordance with Section 13-a(4)(e)(i) of the Workers’ Compensation Law.”

Finally, any questionnaires or intake sheets which the claimant fills out at the IME must also be provided with the IME report.

• Certification of Physician/Exemption From Definition of a Carrier’s Medical Professional: In cases where the carrier is obtaining a peer review or records review report, often utilized in questions of medical treatment necessity, the provider must be “qualified” within the meaning of 12 NYCRR Section 300.2(b)(9), defined as: 

[A] physician, surgeon, podiatrist, chiropractor or psychologist who holds a current, valid, and unrestricted professional license in the state in which he or she performs the subject independent medical examination, and is found to meet additional professional standards as may be required in the discretion of a Workers’ Compensation Law judge or the chair or board based upon the particular facts of a case. 

The subject number also provides that the “amended regulation clarifies that a carrier’s medical professional, as that term is defined in 12 NYCRR §324.1 (c), is not an IME examiner within the meaning of WCL §137 and 12 NYCRR § 300.2.” Of more importance, however, is that “an examination conducted at a clinic that is a member of an occupational health network established pursuant to WCL §151 (3) is not an IME within the meaning of WCL §137 and 12 NYCRR §300.2.”

As such, care must be taken to ensure that the IME physician or peer review is properly credentialed and able to perform the examination or peer review or records review.

• Videotaping IMEs: An IME physician may not refuse to conduct an IME when a claimant appears ready to record or videotape the examination.

• Transmission of Report: Copies of an IME report must now be served upon all “attending providers” (excluding providers who the claimant saw for purposes of a diagnostic test exclusively) who have seen the claimant within the prior six months.

For more information on how these new amendments may impact your business, please contact:

• Cory A. DeCresenza (315.413.5425; cdecresenza@goldbergsegalla.com)
• Damon M. Gruber (716.566.5491; dgruber@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Workers’ Compensation Practice Group.